HC quashes suspension order, grants consequential benefits retrospectively

26/05/2023

JAMMU, May 25: Justice Rahul Bharti of J&K High Court & Ladakh quashed the suspension order pending from last several years which is unreasonable, arbitrary that too without enquiry. The order reads as .....
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SWP No. 547/2016
IA No. 1/2016
Bansi Lal Charagi …..Appellant(s)/Petitioner(s)
Through: Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate
Vs
University of Kashmir and others .….Respondent(s)
Through:
None
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGEMENT
17.05.2023
01. Suspension of an employee in his service does not mean and envisage a corresponding suspension of decision making on the part of an employer to review/revoke it even when a given suspension of an employee outlasts the purpose/end for which it came to be ordered/effected. The present case is an exhibit of very said situation.
02. This is a writ petition filed on 14.03.2016 with respect to a cause of action related to an order no. F(SA-Adm)KU dated 17.10.1985 passed by the Deputy Registrar Administration, University of Kashmir in terms whereof the petitioner herein came to be placed under suspension with an immediate effect pending enquiry in the case of an alleged embezzlement of University money.
03. Through this writ petition, the petitioner came forward for seeking quashment of the aforesaid order, as continuing effect of this order is coming in the way of the petitioner who has even come to attain the age of superannuation of his service with the University of Kashmir while still carrying the tag of being under suspension employee of the University of Kashmir.
04. A bare perusal of the impugned order of suspension reflects that it contemplated an enquiry to be initiated against the petitioner for an alleged misconduct which was warranting the suspension of the petitioner in the estimate of the officer passing the impugned order of suspension. Apparently, it is not shown or gatherable in said order as to whether the enquiry intended/contemplated was a departmental/ disciplinary enquiry or any other enquiry under the conditions of service laid down by the University of Kashmir with respect to its employees.
05. There is a state of litigation which has intervened even before filing of the present writ petition. In one of the said intervening litigations, which is COA(SW) no.10/94 filed by the petitioner herein against the respondents, this Court, in terms of its order dated 12.05.1999, came up with a clear direction that the purported enquiry proceedings referred in his suspension order against the petitioner be completed and for that the appearance of the petitioner before the enquiry proceedings was also directed with a rider that non-appearance of the petitioner in the enquiry proceedings would warrant ex-parte proceedings.
06. In the present writ petition, the respondents came forward with a reply/objections filed on 05.04.2019. A bare perusal of the said reply/objections reveals that no enquiry, as envisaged by this Court in terms of its directions given in the order dated 12.05.1999, ever came to take place at the end of the University of Kashmir for the reasons best known to it because there is no reference to said effect even by whisper made in its reply/objections. In addition, the University of Kashmir, at no point of time, ever came forward for seeking indulgence of the Court, in terms of passing the order dated 12.05.1999, to dispense with the requirement of conducting the enquiry proceedings by show of any reason.
07. A perusal of the response/objections so filed by the University of Kashmir confirms the fact that the petitioner kept on suffering suspension without any enquiry in the offing and also without earning the subsistence allowance though an order to the said effect had been passed by the University of Kashmir subject to some conditions.
08. In April 2019, the University of Kashmir came forward with a response expecting this Court to act upon it that the enquiry contemplated in terms of suspension order could not take place because in the judgment of the University of Kashmir, a criminal case was pending against the petitioner and for that the University of Kashmir did not want to hold the desired enquiry at its end for the very same charge against the petitioner but for which contemplated enquiry the petitioner was suffering continuing suspension.
09. If that be the stand of the University of Kashmir, then the very factual and legal basis of the impugned order of suspension that suspension was being effected pending an enquiry against him got and get eroded and dislodged in the eyes of law.
10. A suspension of an employee cannot be of a perpetual tenure to outlast even when a person comes to attaining of superannuation from the service without getting all the service benefits and also post-retiral benefits settled in his favour just because of the tag of being under suspension attending and accompanying him without bothering an iota of introspection on the part of the administrators of the University of Kashmir to revoke/review its impugned order.
11. It seems that through the medium of impugned order, the University of Kashmir intended just to stigmatize the petitioner and that too with an intent which cannot be said to be bona fide. A bare perusal of the reply/objections filed by the University of Kashmir shows that it does not even whisper a fact about the present status of the petitioner's service, whether he has retired from the service or whether because of being under suspension his retirement has been deferred, any post-retiral benefits paid or not etc.
12. An order of suspension of an employee passed in the course of his service/employment is inherently a reviewable in nature at the discretion of the employer who at any given point of time even while a given disciplinary/departmental/criminal proceedings is/are pending against a suspended employee, can recall/review suspension order subject to reasons warranting/justifying the recall/review. This power to review/recall an order of suspension is exercisable, unless rules prohibiting, suo moto or even at the solicitation of a suspended employee. An employer shall always remain self advised to examine an employee's suspension in currency as to whether it shall prolong further or prorogue for better ends of the service employing the employee under suspension.
13. An overstretched suspension of an employee qua service at his given post suffers shift of character from being non-punitive to punitive, styptic to stigmatic particularly when the disciplinary/departmental proceedings against suspended employee proceed on a snail pace seeing no time bound closure without any contributory role of the suspended employee in the delay/slow-pace of the enquiry proceedings.
14. If non-application of mind, mis-application of mind and mechanical application of mind are the known wreckers of an administrative/quasi-judicial decision making at the end and hand of a public authority/official, then there is another variety of mindset which can vitiate an administrative/quasi-judicial decision making which is absentmindedness on the part of the public authority/official which/who is supposed to act with full application of faculty of mind with respect to the administration and the ones administered by it/him.
15. Present case is a live exhibit of absentmindedness on the part of the administrators of the University of Kashmir who came to place the petitioner under suspension in October, 1985 pending a disciplinary enquiry contemplated against the petitioner but went a miss in conducting so despite being reminded by a direction of this court to the extent that the petitioner is said to have attained age of superannuation from the service in the course of time without being relieved of tag of under-suspension.
16. Suspension of an employee in the course of his/her employment/service can take place either by the contract governing the employment/service of an employee or the rules providing for and governing the employment/ service joined by an employee. Be it contract driven or rule driver power of suspension, an employee who comes to suffer a suspension, for a given contingency attending his conduct as an employee warranting suspension, finds his/her contract of service suspended bearing an equivalent effect of suspension of mutual rights and obligations obtaining between the employee and the employer. In this state of suspension can a suspended employee, as the petitioner is, be retired from employment by the employer without first revoking in an express manner suspension of the retiring employee is an aspect to which Mr. P. N. Raina, the learned Sr. Advocate has adverted his submissions but this Court is not getting into that as same is not directly in issue.
17. In the case of "P. L. Shah Vs Union of India and another," reported in 1989 AIR SC 985, the Hon'ble Supreme Court of India in paragraph 6 of the judgment has come to hold that an order of suspension is not an order imposing punishment on a person found to be guilty but it is an order made against him before he is found guilty before guilty initiated against him, except the proceedings to be completed expeditiously in the public interest and also in the interest of the Government servant concerned. In the case before the Hon'ble Supreme Court of India, the Government employee had suffered suspension for thirteen years in continuation.
18. Be that it may be, the impugned order ought not to have survived beyond one year of its operation going by standard of reasonableness and fairness and that too without any enquiry in the offing, but the same has continued to stay in play till the disposal of the present writ petition is taking place by virtue of this judgement. The writ petition is allowed. The impugned order no. F(SA-Adm)KU dated 17.10.1985 is set aside.
19. In view of the disposal of the writ petition, the petitioner shall be within his right to raise all his claims with respect to service status from the University of Kashmir. In view of the setting aside the order dated 17.10.1985, the petitioner is held entitled to release of the service benefits retrospectively with effect from 17.10.1985 with all consequential benefits be it for purpose of promotions, arrears of pay and other service benefits. The University of Kashmir shall be bound to decide the claim of the petitioner within a period of two months from the date the petitioner lays his claim before the University of Kashmir along with the certified copy of this judgement of this Court.
Disposed of accordingly.
(Rahul Bharti) Judge
Jammu
17.05.2023
Muneesh”

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